U.S. Commission on Unalienable Rights’ Meeting, November 1, 2019

Here is a summary of the November 1, 2019, meeting of the U.S. Commission on Unalienable Rights featuring  presentations by Cass Sunstein, the Robert Walmaly University Professor at Harvard Law School, and Orlando Paterson, the John Cowles Professor of Sociology at Harvard University.  [1]

Chair May Ann Glendon’s Introduction

Chair Glendon “explained that the Commission is still in the very beginning stages of its task, which is to advise the Secretary of State on the role human rights play in foreign policy, with that advice grounded in America’s founding principles, as well as the international commitments the United States made after World War II. Glendon emphasized the Commission’s independence: Commissioners are obliged to give the Secretary their best advice, to be non-partisan, and to consult broadly with experts from Department of State (for example, in the Bureau of Democracy, Human Rights, and Labor (DRL)), but also with outside activists and academic specialists. Glendon praised the speakers who participated in the Commission’s previous meeting in October.”

Commissioner’s Comments

“Each commissioner explained his/her professional background and reflected on the speakers from the last session.” Of particular note is the following comments by Commissioner  Dr. Jacqueline Rivers, who “voiced a sentiment, shared by others, that bridged the different topics and time periods the Commission will consider in its work. For Rivers, one crucial question is how to avoid repeating a ‘major failing’ at the time of the Founding, when there was a great articulation of rights (for example, in the Declaration of Independence) but also, because of the prevalence of chattel slavery and the political subordination of large segments of society, a graphic failure to live up to those principles. As she contemplates how the United States can prevent that same failure from re-occurring internationally, one focus for Rivers will be on achieving consistency in forcefully stating, and then implementing protections for, human rights.”

Professor Cass Sunstein’s Presentation

Sunstein opened by saying he would make two major points:

  • First, . . .the U.S. conception of rights [in 1776] was a historical outgrowth of a sustained attack on monarchical legacy and the notion that some people rank above others by birth. Rights, [ however,] reflected a belief in human  dignity and citizenship.
  • Second, ”’freedom from desperate conditionshad widespread support at the Founding. Although it was not constitutionalized in any sense, . . . the articulation of, and public support for, this freedom later culminated in President Franklin Delano Roosevelt’s Second Bill of Rights. Thus, . . . there is a degree of continuity between newer, twentieth century conceptions of rights and freedoms and those from the founding era.” (Emphases added.)

Rights and citizenship: the “American Revolution is often considered to be ‘conservative,’ relatively speaking – or at least cautious and milder than the French and Russian revolutions. But, . . . that characterization is misleading, given the major break with British legacy that occurred in the American colonies in the decades leading up to the revolution. During that time period, cultural notions of republicanism were popular, which led to fresh thinking about what governments ‘do’ and the purposes for which they exist. In America, ‘radical’ republicanism entailed self-government and eliminated social class-based hierarchies of various kinds. [The] so-called ‘down look’ of the poor – a sign they ‘knew their place’ and had resigned themselves to their lowliness. This down look changed as the explosive new ideas of liberty and equality took hold on society. John Adams wrote with amazement that ‘Idolatry to Monarchs, and servility to Aristocratical Pride, was never so totally eradicated from so many Minds in so short a time.’ . . . [This] quote is significant because Adams’s surprise is palpable – he did not express such obvious ‘shock’ in any of his other writings. The transformation upon which Adams was remarking involved people who once regarded themselves as subjects coming to regard themselves instead as citizens, who possess sovereignty. This is a major development, . . . and to lament on what the revolution did not accomplish is to miss the remarkable social and political restructuring that it set into motion.”

Citizenship as unifying theme in Bill of Rights. Shifting to the U.S. Bill of Rights, . . . the American Founders sought, above all, to guarantee the preconditions of effective self-government. (. . .We fail to understand the Bill of Rights if we see it as based solely on opposition to government, or on a kind of laissez-faire individualism.) “

“[Among the writings [of the Founders] is a convergence of several intellectual traditions, both theological and otherwise.”

“Turning to individual provisions of the Bill of Rights, . . . the jury trial protected by the Sixth and Seventh Amendments . . .  should be thought of not only in terms of the individual legal right created. The jury trial also allows for the participation of citizens – ones, who, prior to the Revolution, may have borne the ‘down look’ – in American civil and criminal justice systems. In deciding individual cases, jurors can modify the harsh edges of law by finding defendants innocent in close cases. And in carrying out these [duties?]. jurors also receive an education in the law itself.”

“In the same regard, . . . the right to private property, which creates a [sense?] of individual control (by protecting people’s holdings against government taking without compensation) but is also necessary for the status of citizenship. Since private property provides a means for people to live and support themselves, citizens possessing it are not solely dependent on the good will of government.”

“As for the Second Amendment, . . .  it is controversial in modern times. . . .[It] is a political right, which, at a minimum, prevents the federal government from outlawing state militias. These militias perform important democratic functions – by providing a training ground for the cultivation of virtue, and a constraint on potentially tyrannical government.”

The “Bill of Rights is not only about creating a sphere of individual liberty, free of government control, but also about creating conditions that would allow for the robust practice of citizenship.”

Social and economic rights: . . . [The] Founders gave no serious thought to including social and economic guarantees in the Bill of Rights. But . . . some of the founders’ writing, while not at the constitutional level, shows a surprisingly strong commitment to such guarantees. James Madison, for example, wrote of ‘withholding unnecessary opportunities from a few, to increase the inequality of property, by an immoderate, and especially unmerited, accumulation of riches.’ Madison also appeared in favor of ‘rais[ing] extreme indigence toward a state of comfort.’ Meanwhile, Thomas Jefferson, while not a framer of the Constitution, exerted a strong influence during the founding period and wrote of ‘lessening the inequality of property’ by ‘exempt[ing] all from taxation below a certain point, and . . . tax[ing] the higher portions of property in geometrical progression as they rise.’ . . . [S]ocial theorists Montesquieu, John Locke, and Thomas Paine, all of whom were read by the American founders,. . . [in their writings] similarly suggest a commitment to social and economic rights. [D]uring the constitutional framing period, there was widespread support in America for legislation that would provide poor people with the basic necessities of life and that, unlike in England, where so-called ‘outdoor relief’ to able-bodied poor people was restricted, nearly all U.S. states allowed that form of assistance.“

“FDR and the Second Bill of Rights: . . . In 1944, President Franklin Delano Roosevelt (FDR) delivered a State of the Union address to Congress, which connected the war against tyranny with the Great Depression and the subsequent effort to combat economic distress domestically. The speech characterized ‘the one supreme objective for the future’ as ‘security,’ a term with multiple meanings. For FDR, security entailed not only ‘freedom from fear’ but also ‘freedom from want.’ . . . FDR explicitly used the, threat from Germany and Japan as an occasion for a renewed emphasis on providing protection against the most serious forms of human vulnerability at home.”

“In his speech, FDR looked back to the framing of the Constitution and argued that the unalienable rights at the Founding had proved inadequate, since it had become obvious that ‘true individual freedom cannot exist without economic security and independence.’ That provided the justification for FDR laying out his ‘Second Bill of Rights,’ which included the right to employment, to a dwelling place, to medical care, and to a good education, among other rights. . . . Roosevelt did not mean for these rights to be judicially enforceable, and indeed . . . FDR would have ‘deplored’ this idea. In his speech, however, FDR did call on Congress to ‘explore the means for implementing the economic bill of rights-for it is definitely the responsibility of Congress to do so.’”

“FDR’s speech is significant for marking the collapse of the idea, prominent in the period before the New Deal, that freedom comes from an absence of government. It was also important because the Second Bill of Rights went on to influence the content of the Universal Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights, and dozens of foreign constitutions.”

Sunstein’s Responses to Commissioners’ Questions

The Commission’s Executive Director, Peter Berkowitz: Heagreed that the jury trial right is essential to citizenship in a liberal democracy, . . . [but] that few would contend the jury right to be appropriately labeled as a ‘human’ and/or ‘unalienable’ right. Is a jury trial, Berkowitz wondered, essential to human flourishing in non-democratic regimes?“

  • Sunstein responded: “[C]ertain protections in the [original] Bill of Rights are properly characterized as unalienable; off the top of his head, he . . . [said] that free speech and property rights, for example, qualify. . . . [He] was ‘hoping and gambling that many cultures have a ‘Locke-type’ figure that provides the philosophical founding for these rights in non-Anglo American traditions. When it comes to social and economic rights, Sunstein said the situation is somewhat different. Were those rights to qualify as unalienable, what is necessary would be ‘a theory about how, if people are living in desperate conditions, a universal right is being violated.’ He said that, in some sense, the destitute living on the street without food or shelter suffer from their humanity being ‘annihilated,’ but also said he was ‘groping for right verbal formulation’ to express this notion in terms of rights.“

Rabbi Dr. Meir Soloveichik, the Director of the Zahava and Moshael Straus Center for Torah and Western Thought at Yeshiva University and rabbi of Congregation Shearith Israel, said that “the founders often stressed that certain rights are pre-political – like the free exercise of religion. He asked . . . if some of the other rights contained inside the Bill of Rights are also pre-political. . . . Soloveichik also asked whether the promotion of social and economic rights at the hands of government, . . .will inevitably clash with individual liberty. (By way of example, Soloveichik noted that expanding health care coverage at times has been in tension with individual religious liberty claims.)”

  • Sunstein said the following: “[T]ension between different rights is inevitable, regardless of whether social and economic rights (rather than other kinds) are involved. Citing the U.S. Supreme Court decision Wisconsin v. Yoder, Sunstein said that it is clear that certain kinds of rights—for example. the right to religious free exercise – prevail over others in legal disputes, and that, in order to decide, courts sometimes will look at the severity with which a right is being infringed, a question over which reasonable people may disagree. He said that clashes are an occasional but not devastating consequence of a regime recognizing multiple rights. . . . Sunstein [also] said that the majority of the rights contained in the Bill of Rights are pre-political, but that that is not at odds with acknowledging the Bill of Rights as being fundamentally ‘about’ citizenship.”

Professor Paolo Carozza, Professor of Law and Concurrent Professor of Political Science at the University of Notre Dame, where he also directs the Kellogg Institute for International Studies, asked Sunstein to elaborate on the nature of social and economic rights, and his rationale for saying that they are judicially unenforceable. . . .”

  • Sunstein “said that he had a ‘mundane’ account of why they are not judicially enforceable, and that is because allocative decisions are not well suited, institutionally, for judicial oversight. He cited the example of judges in South Africa facing severe challenges when attempting to enforce social and economic rights in that country.”

Dr. Christopher Tollefsen, Distinguished Professor and Chair of Philosophy at the University of South Carolina,“brought up the right to a jury trial, saying that he would have thought that the notion underlying it is not citizenship, . . ., but rather fairness. Tollefsen asked if there was a more pluralistic set of directions that the notion of dignity ‘can go in’ that does not need to get ‘filtered through’ citizenship.

  • Sunstein “agreed that the jury right is most fundamentally about fairness, but he pushed back against Tollefsen’s labeling citizenship as just a ‘bonus’ in the Bill of Rights. Sunstein said that it was more like a by-product of notions central to our constitutional system. Sunstein further explained that it is hard to understand the Bill of Rights outside the context of a revolution recently fought for republican self-government. In his view, modern observers tend to read it in a way that is de-historicized.”

Dr. David Tse-Chien Pan, Professor of German at the University of California, Irvine, “wondered if, in U.S. foreign policy, any defense of human rights necessarily entailed creating republican self-government everywhere. He asked Sunstein if, in his view, there could be a . . . [more] modest role for human rights that does not necessitate regime change.”

  • Sunstein “answered that yes, the U.S. can hold republican self-government up as ideal while still working with other types of regimes. In Sunstein’s view, the writings of the American founders speak deeply to nations and peoples that are ambivalent about republican self-government, and part of the reason may be the writings’ emphasis, though never quite expressed in these terms, on human dignity.”

Dr. Russell A Berman, the Walter A. Haas Professor in the Humanities at Stanford University and a Senior Fellow at the Hoover Institution and current Senior Advisor in Policy Planning at the Department of State, “asked why FDR would have, in Sunstein’s words, ‘deplored’ the judicial enforcement of social and economic rights.”

  • Sunstein “said that FDR was not a fan of judicial ‘aggressiveness’ generally and would have been attuned to tradeoffs and difficulties inherent in economic allocation. That FDR nonetheless was insistent that social and economic guarantees be labeled as ‘rights,’ in Sunstein’s view, speaks to the president’s view that they have some sort of moral foundation. Furthermore, that FDR was willing to embrace the rights in a presidential speech, but would probably not have elected for [them to] be extensions to the Bill of Rights, may have had something to with his belief – shared by James Madison in his own day – in ‘infusing the culture’ with ideas that eventually become part of the national fabric. Sunstein pointed out that the right to education, and bans on monopolistic corporations, still widely embraced in the 21st century, show that Roosevelt really did play an enduring role in shaping our national consciousness.”

Professor Hamza Yusuf Hanson, the President of Zaytuna College, the first accredited Muslim liberal arts college in the United States, and Dr. Jacqueline Rivers, Lecturer in Sociology at Harvard University, exchanged ideas regarding private property. Hanson said that scholar Richard Weaver once described it as the ‘last metaphysical right’ that people agree upon, but that, in the 20th and 21st centuries, it has not received as much attention as it did in the time of Locke and the American revolutionaries.”

  • Sunstein “said that, in Western countries, the perceived need to fight for property rights is not acutely felt, because property is relatively secure in these places. But in other countries where those rights are most needed, the idea of private property is under attack.

Rivers “segued into consideration of other types of property. She noted that the American welfare system is still weaker than in some other Western countries. Could that be, she wondered, because America has become overcommitted to protecting private property?”

  • Sunstein “described himself as a proponent of private property and saw no conflict between endorsing private property rights alongside social welfare benefits. Sunstein brought up President Ronald Reagan, for whom he once worked, saying that Reagan was on record for endorsing a right to education and other rights conventionally associated with more socially progressive advocates.” 

Chair Mary Ann Glendon thanked Sunstein for being helpful in achieving one of the most challenging parts of the Commission’s overarching task – showing a degree of continuity between the Founding and the New Deal, and from New Deal to the Universal Declaration of Human Rights (UDHR). She asked if the Bill of Rights leaving out social and economic guarantees could be thought of as an instance in which the founders took for granted the local associations and arrangements that would care for indigent persons.

  • Sunstein “answered affirmatively, saying that the Constitution contemplated institutional pluralism. He noted that, in the early years of the republic, the national government had a limited role and the Bill of Rights did not apply to states.”

Professor Orlando Patterson’s Presentation

“Patterson’s first main point was that the idea of rights and the idea of freedom overlap but are not interchangeable.”

“The United States has long seen itself as the ‘Land of the Free,’ and, as the global leader of the free world, its “mission” has been to ensure freedom of its citizens to a degree not enjoyed in many other countries. But Patterson said that another concept has come to compete with this notion. Especially since World War II, U.S. has come to embrace individual rights in fits and starts.”

“Patterson expanded on the distinction (freedom vs. rights) by clarifying what, in his mind, ‘freedom’’means. He referred to it as a tripartite idea.”

  • First, human persons are free, at least to the degree they are not under power of others, to make choices, to do what they want, and to achieve the desires they set for themselves.”
  • Second, they are free to exercise power to influence the world. (Patterson called this “empowerment” and cited Indian economist and philosopher Amartya Sen.) For long periods of human history, Patterson argued, this type of freedom was associated with power over other people. This is important to recognize because, for him, freedom is not the opposite of power, even though it is commonly held to be.”
    • “To support his argument.Patterson mentioned “the Southern slaveholding conception of freedom” in the United States, which entailed the freedom of wealthy landowners to control the bodies and labor of African-Americans and was famously discussed by Abraham Lincoln and Stephen Douglas in their debates.”
    • “Even though slavery has been abolished in America for many years, Patterson said that freedom as ‘power over others’ continues in the 21st century – in the form of some people controlling large amounts of property.”
  • Third, people are free, according to Patterson, to share in the collective power of groups. He referred to this as civic freedom, and as best realized through democracy.”

“Patterson called tripartite freedom quintessentially Western in origin, rather than universal. He explained that, although English philosopher John Locke held freedom to be ‘written on the heart of man’ (Patterson’s words), freedom actually involves an ancient, culturally specific, way of looking at the world. What is uniquely Western is not only the tripartite nature of freedom, but also its relative status – in other words, that freedom is valorized as one of the pinnacle values of civilization. Contributing to this prioritization, . . [was].the religion that fashioned the West, Christianity (which emphasizes redemption, sacrifice as the way to free one’s self from spiritual slavery), as well as earlier, Roman notions of liberty. Patterson compared the spread of freedom across the world to Christian missionary work, arguing that freedom became more universal over time. This, in his view, has not always been without negative consequences. Military interventions in Iraq have shown that assuming all people (and especially non-Westerners) to desire freedom can be wrong and even dangerous.”

“‘Rights’ are distinguishable from freedom. For Patterson, they represent a set of claims concerning our condition as human beings. The claims are moral in nature, and their protection is necessary to preserve our most fundamental sense of what it means to be human. Rights are inherently egalitarian, whereas with ‘freedom,’ Patterson argued, there is no such assumption of equality.”

“Patterson then commented on America’s complex relationship between rights and freedom, stressing that the American tradition differs from the European one. In Britain, Patterson said, there frequently has been skepticism about rights. The English jurist and social reformer Jeremy Bentham, for example, called natural rights “nonsense upon stilts.” In the United States, there has been a stronger embrace of rights, but also a lingering uneasiness about them, according to Patterson. He mentioned that the Bill of Rights was a compromise measure that, at its adoption, few if any thought was perfect. Patterson noted that, throughout American history, there has been elite opposition to rights held by ‘the masses.’ He also mentioned the passage of the 14th Amendment and the Slaughterhouse cases as important rights milestones.”

“Patterson quoted an intellectual descendant of Jeremy Bentham, the philosopher Alasdair McIntyre, who once described rights as a ‘fiction,’ writing that ‘belief in them is one with belief in witches and unicorns.’”

“Then Patterson shifted gears to discuss the U.S. ‘Rights Revolution,’ which he believes stands in stark contrast with the history preceding it. His view is that it is anachronistic to posit that rights are the most critical element of America’s founding documents. That is because, in Patterson’s view, rights did not gain currency until much later – specifically, when the horrors of Nazism during World War II shocked the world’s conscience, triggering people’s shared moral instincts that there must be some baseline that all people are owed, inhering their basic humanity. The war’s atrocities combined with anti-imperial movements across the world and other developments: Black Americans fighting for freedom and returning home, wondering what their status would be in American politics, and what they held in common with others fighting for freedom; a shift in decisions by the U.S. Supreme Court; and the social movements waged by women and other groups. These trend lines converged and culminated in the 1970s, a decade which Patterson called quite extraordinary, even though, in his view, America in many respects is still (in the year 2019) in the midst of the lingering rights revolution.”

“Patterson held that the next phase of the rights revolution, almost as important as War II in terms of focusing attention on the deprivation of human rights, began to occur in the 1980s, with the emergence of the fight against modern slavery and human trafficking. Patterson emphasized that trafficking is normally spoken about as a violation of rights, more than it is a violation of freedom. He mentioned sex trafficking, the widespread condemnation of which has led to an alliance of strange bedfellows – the evangelical right and feminist left. He also mentioned labor trafficking, and employers being unable to say ‘stay out of our business’ as various forms of on-the-job inequity are now challenged and subject to outside scrutiny.”

“Patterson gave a tip of the hat to the U.S. Department of State for publishing its annual Trafficking in Persons (TIP) report, and said that, when it comes to condemning trafficking, the Department is better off using the language of rights than it is using the language of freedom. Each year, more and more people are able to make rights claims – for example, women in forced marriages, who have been newly defined as ‘slaves.’ Patterson described the language of rights as infinitely expandable to accommodate new kinds of claims. He saw this largely as a good thing: America is leading by example, expanding rights for an ever increasing number of people. As intimated at other points during his remarks, Patterson said that although he retains great love and respect for the concept of freedom, he thinks it is a mistake for the West to proclaim it to the world and try to convert others into showing similar reverence. Rhetorically speaking, rights are more effective tools to achieve similar ends.”

Patterson’s Responses to Questions

Executive Director Berkowitz “thanked Patterson for his thoughtful talk and then explained that the Commission has heard some criticisms of rights that are very similar to ones Patterson made about ‘freedom’ – that rights are exclusively Western, for example. Berkowitz said he welcomed Patterson’s thoughts on whether criticisms are equally applicable to both concepts.”

  • Patterson “said that, in his view, the [assertion that] rights are Western’ claims are shallower than those waged against freedom. Rights have origins that go at least as far back as the Middle Ages and Reformation. Admitting that there is a complicated story of how the concept of rights evolved and influenced public discourse, Patterson said that ‘rights talk’ – while Western in origin – was, from very beginning, seen as applying to all human beings, unlike freedom. Fundamental rights, thus, were extra-territorial and extra-political.”

Tollefsen “expressed some sympathy for the distinction Patterson drew between freedom and rights. Nothing that there are articulations of freedom that can come into tension with rights, Tollefsen cited the ‘freedom to consume,’ which, when enjoyed, can sometimes mean disregarding the rights of those whose exploited labor produced goods consumers enjoy. But Tollefsen also worried that any moral concern over modern-day slavery must involve an appeal to some notion of freedom.”

  • Patterson “responded that the concepts in question (rights, freedom) definitely overlap. But he said that, when it comes to international advocacy, work on behalf of freedom does not always have the same force or effect that rights-based advocacy does. Patterson mentioned Freedom House, which honors  countries on their honoring of civil and political rights, and contrasted its work with Department’s TIP report. Patterson discussed the TIP report’s 3-tier methodology, a provided the example of Japan, where there was great consternation when the U.S. did it in its TIP report. In response to the demotion, Japan made important reforms. Patterson’s basic point was that the United States can promote liberal democracy (and thus-freedom) abroad but must remember that democracy requires preconditions in order to function successfully. He argued that, when it comes to making rights claims, those preconditions are not as necessary because people have rights regardless of what political system is in place.”

Soloveichik “acknowledged that the concept of freedom has been misused and perverted at times throughout America’s history. But then he cited the abolitionist movement, during which the concepts of freedom and rights appeared to go hand in hand. Soloveichik also mentioned Martin Luther King, Jr., one of whose most famous lines is “let freedom ring.” Soloveichik’s question was whether freedom and rights enhance one another.”

  • Patterson “responded that, yes, at America’s best moments – in some of President Abraham Lincoln’s writings, for example, during the struggle for women’s suffrage and equality, etc. – rights and freedom complement each other ‘sublimely.’ But during our country’s worst moments, the two concepts are twinned in perverted ways – for example, during the Confederacy, when southern liberty was held up as an ideal while African American slaves’ rights were openly and appallingly violated.“

Katrina Swett, the President of the Tom Lantos Foundation for Human Rights and Justice,  said “that she had always thought of freedom and human rights as inextricably connected, but that Patterson’s writings and lecture were very challenging to her past understandings. She wondered as a practical matter if free and democratic societies do the best job of protecting rights.”

  • Patterson “said that, absolutely, they do. But then he mentioned that somewhere on the order of 70% of the world’s chocolate is (or previously was) produced by child labor. In recent years, thousands of NGOs have pressured chocolate manufacturers, farmers, and governments to change this situation. Patterson’s point was that, when it comes to protecting human rights, advocates can achieve progress even in non-democracies. (Democracies are ideal, but they are not the only regimes where rights can be protected.) In another example, he said that China has cut poverty in half. People are no longer starving – because China, though far from a democracy, in certain respects has honored the ‘right to food’ and the ‘right to life.’”

Chair Glendon concluded by thanking Patterson for helping the Commission with a problem it will have to confront – the difficulties and confusion inherent in using terms and concepts to which different groups impute various meanings and connotations.”

Public Comments

Several members of the public made comments. Here is a summary of the more substantive ones.

“A representative from the Center for Family and Human Rights spoke of the unintended consequences of rights expansion: Sometimes people have to give up certain rights in order to accommodate new definitions of rights – thus promoting a ‘competition of rights’ [and?] growing skepticism regarding the United Nations (UN) approach to protecting human [rights. The representative stressed that now is a prime opportunity for basic issues to be [reframed?]”

“Fr. Mark Hodges, an Orthodox priest. spoke about the Christian conception of rights, framework which involves concepts like universal dignity and free will. He urged the Commission to prioritize religious freedom and the right to life.”

“A representative from the Heritage Foundation said that when international bodies like the UN consider all rights on equal footing, it is worth asking whether they are confusing certain ‘desirable ends’ with human rights. He asked how long internal conflicts can persist within the global human rights movement before we reach a point of human rights paralysis, and he wondered whether the proliferation of rights does violence to the notion of unalienable rights. Commissioner Paola Carozza responded that, in international human rights law, there actually is a hierarchy of rights – some are non-derogable, and some achieve status of jus cogens, while others do not.”

“A law professor from the University of Oklahoma then asked whether the comments submitted to the Commission by various civil society groups will be made public, and suggested the Commission publish specific questions, and set specific deadlines, so that outside groups can contribute more efficiently.”

“Representatives from Human Rights Watch urged the Commission to invite ‘grassroots’ human rights defenders to come testify, saying their work is crucial but does not enter into ‘esoteric academic debates.’”

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[1] Update on U.S. Commission on Unalienable Rights, dwkcommentaries.com (Feb. 19, 2020).   

[2] Comm’n Unalienable Rts, Agenda (Nov. 1, 2019); Comm’n Unalienable Rts., Minutes (Nov. 1, 2019).

 

Beschloss Discusses “Presidents of War” at Westminster Town Hall Forum

On November 13, only one week after the U.S. mid-term election, Michael Beschloss appeared before an overflow crowd at Minneapolis’ Westminster Town Hall Forum to discuss his  recent book, Presidents of War: 1807 to Modern Times.[1] Below are photographs of Beschloss and the Westminster Sanctuary before the arrival of the crowd.

 

 

 

 

The Presidents of War

He made the following brief comments about the eight presidents of war who are covered in his book.

President James Madison and the War of 1812. This was the first and the most unpopular war in U.S. history, climaxed by the British burning of the White House and Madison’s  escaping to Virginia in August 1814. (The book covers this in the Prologue and Chapters Two and Three.)

President James Polk and the Mexican-American War (1846 1848). This war was started by the U.S. on the U.S.false assertion that Mexico had ambushed and killed an American soldier in the new state of Texas. The U.S. won the war and acquired more than 500,000 square miles of Mexican territory extending  west of the Rio Grande River to the Pacific Ocean.(This is covered in Chapters Four and Five.)

President Abraham Lincoln and the Civil War (1860-1865). Lincoln was the best president of war. Initially he was not a crusader and instead an enforcer of the  constitutional ban on secession, which was not a popular message. Later with the Gettysburg Address and the Second Inaugural Address he made it a moral crusade against slavery and the people began to follow Lincoln. (This is covered in Chapters Six and Seven.)

President William McKinley and the Spanish-American War, 1898.  This was another war started on a false assertion: Spain had blown up the USS Maine in the Havana Harbor, when in fact it was caused by an exploding boiler in the ship. This war resulted in the U.S.’ acquiring the Philippines, Puerto Rico and Guam from Spain and de facto control of Cuba. (This is covered in Chapters Eight and Nine of the book.)[2]

President Woodrow Wilson and World War I, 1917-1918. In his re-election campaign of 1916, Wilson’s slogan was “He kept us out of war,” but in April 2017 he had Congress declare war after German attacks on U.S. ships. In his well-meaning campaign for the League of Nations, Wilson made a lot of mistakes. (This is covered in Chapters Ten and Eleven.)

President Franklin D. Roosevelt and World War II, 1941-1945. Before the Japanese bombing of Pearl Harbor on December 7, 1941, FDR gave very few speeches about the war in Europe, and there was strong U.S. public opinion against entering the war on the belief that World War I had been a mistake. Immediately after the bombing of Pearl Harbor, however, the Congress declared war against Japan, the last time the U.S. declared war under the Constitution. FDR learned from the war with the exception of treatment of Japanese-Americans.  (this is covered in Chapters Twelve and Thirteen.)

President Truman and  the Korean War (Conflict), 1950-1953.  According to Beschloss, Truman had read and written some history and had said one “could not be president without knowing history” and “every leader must be a reader.”(This is covered in Chapters Fourteen and Fifteen.)

President Lyndon Johnson and the Vietnam War, 1963-1969. This is another war started on a false U.S. assertion: the Vietnamese had attacked a U.S. ship in the Gulf of Tonkin, which lead to a congressional resolution supporting military action. The White House audio tapes of LBJ’s conversations revealed important information: (a) Senator Richard Russell urged LBJ to get out of the war; (b) Secretary of Defense McNamara urged LBJ to get involved, thereby disproving McNamara’s later denials of same; (c) LBJ came to believe that this was a war the U.S. could not win and could not lose; and (d) LBJ rejected the advice of General Westmoreland to use nuclear weapons in the war.  (This was discussed in Chapters Sixteen and Seventeen of the book.)

Commonalities of the Presidents of War

Beschloss identified two common characterizes of these presidents.

First, they all became more religious during their wars. Lincoln before the Civil War was a sceptic or agnostic, but during the war regularly read the Bible and talked about wars being “oceans of blood” that prompted his  seeking biblical guidance for sending young men to their death. Lyndon Johnson before the war was not a regular church-goer, but during the war, his daughter Lucy Baines Johnson Turpin, who had become a Roman Catholic, regularly and confidentially took LBJ to mass , and Lady Bird Johnson was heard to say he might convert to Catholicism.

Second, they all were married to strong women who gave good advice. In 1942 FDR  was considering internment of Japanese-Americans, and Eleanor warned him strongly not to do so. The subsequent internment caused a major rupture in their marriage.

In response to a question about whether any of the war presidents had military experience, he did not state the obvious: they had not except for Truman in World War I. Instead, he said that President Eisenhower, who is not covered in the book even though he presided over the end of the Korean War, had the “perfect” military experience resulting from his military education and training and command responsibility during World War Ii that provided him with the knowledge of the ends and means, the costs and the unpredictability of war.[3]

 The President of Peace

In response to a question, Beschloss identified only one president of peace:. President Thomas Jefferson in 1807 resisted public pressure to go to war with Great Britain over an attack by its ship (The Leopard) against a U.S. frigate (The Chesapeake) in the Atlantic Ocean off the coast of Virginia that killed three U.S. sailors and wounded eight others. (This is discussed in Chapter One of the book.)

 Advice to U.S. Citizens

All presidents need wisdom, courage and judgment. They need to be moral leaders.

Citizens, Senators and representatives need to evaluate and criticize presidents on important issues, especially those of war and peace.

In his book’s Epilogue, Beschloss says “the framers of the Constitution had dreamt that war would be a last resort under the political system they had invented. Unlike in Great Britain and other monarchies and dictatorships of old, it would be declared by Congress, not the chief of State.” Yet “the notion of presidential war took hold step by step.” We as citizens need to insist on obeying the Constitution and requiring congressional declarations of war.

Beschloss Biography

Beschloss is an award-winning author of nine books on presidential history. He is the presidential historian for NBC News and a contributor to PBS NewsHour. A graduate of Williams College and Harvard Business School, he has served as a historian for the Smithsonian Institution, as a Senior Associate Member at St. Antony’s College, Oxford, and as a Senior Fellow of the Annenberg Foundation. His books on the presidency include, among others, The Crisis Years: Kennedy and Khrushchev, 1960-1963; The Conquerors: Roosevelt, Truman and the Destruction of Hitler’s Germany; and Presidential Courage: Brave Leaders and How They Changed America, 1789-1989. His latest book, Presidents of War, was published in October. He is the recipient of the Harry S. Truman Public Service Award, the New York State Archives Award, and the Rutgers University Living History Award. He is a trustee of the White House Historical Association and the National Archives Foundation and a former trustee of the Thomas Jefferson Foundation.

==============================

[1] Westminster Town Hall Forum, Michael Beschloss, Presidents of War: 1807 to Modern Times (Nov. 13, 2018) (the website also includes a livestream of the lecture and Q & A); Black, ‘Presidents of War’: Historian Michael Beschloss on leaders who’ve taken U.S. into battle, MinnPost (Nov. 14, 2018); Barnes & Noble, Presidents of War (2018).

[2] Before 1898, the U.S. had a desire to own or control Cuba that was promoted by by U.S. slaveholders desiring support of Cuban slaveholders, and after U.S. entry in 1898 into the Second Cuban War of Independence (what we call the Spanish-American War) and the U.S. defeat of the Spanish, the U.S. made Cuba a de facto protectorate that lasted until 1934. Since the 1959 overthrow of Batista by the Cuban Revolution, of course, the two countries have had a contentious relationship, including the U.S. Bay of Pigs invasion of  1961 and the Cuban Missile Crisis of 1962 that nearly erupted into war. (See posts listed in the “ U.S.-Cuba History, 1989-2010” section of List of Posts to dwkcommentaries—Topical: CUBA.

[3] Another U.S. president with wartime experience, including injuries, was John F. Kennedy, who during the Cuban Missile Crisis of 1962 helped to steer the U.S. out of a possible nuclear war with the USSR over its missiles in Cuba. (See posts listed in the “ U.S.-Cuba History, 1989-2010” section of List of Posts to dwkcommentaries—Topical: CUBA.

Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: The UPR Hearing                    

This year Cameroon’s human rights record is the subject of its third  Universal Periodic Review (UPR) by the U.N. Human Rights Council in Geneva, Switzerland. Prior posts reviewed the nature of the UPR process and the pre-hearing papers for this UPR. Now we review Cameroon’s May 16 UPR hearing with a focus on the various comments made about the current conflict between the majority Francophones and the minority Anglophones.[1]

This hearing was limited to 3 ½ hours (210 minutes) and each of the 76 countries was limited to 1 minute 25 seconds (85 seconds).

Cameroon Government’s Comments

The Cameroon Government opened the hearing with comments by H.E. Mr. Mbella Mbella, its Minister of Foreign Affairs.

Near the end of his remarks, he said, “The social crisis in the North-West and South-West (Anglophone regions) began at the end of 2015 with strikes of lawyers and teachers. In response the government created the National Commission of Bilingualism and Multiculturalism to protect and ensure the balance of security and freedom.”

Earlier he laboriously discussed the process of preparing this national report, the implementation of recommendations from the prior UPR, the ratification of various human rights treaties, the adoption of the National Plan for the Promotion and Protection of Human Rights and the records of prosecutions and convictions for violations of human rights.

U.N.  Members’ Comments

There were 76 governments that made comments at the hearing (32 of whom were also Human Rights Council members plus 44 other U.N. members). Most of the comments and recommendations concerned Cameroon’s ratifying and enforcing various international human rights treaties, protecting the rights of children, women and LGBTQ people and other topics.

However, only the following 14 countries specifically addressed the current conflict between the Francophone-Anglophone communities:

  • Australia. Concerned about “recent violence between Cameroon security forces and protesting minority groups in [its] South-West and North-West [regions].” Recommends Cameroon “lift unnecessary restrictions on freedom of assembly, investigate alleged excessive use of force in disbursing demonstrators and assure arrested protestors receive fair trials.”
  • Austria. Concerned about “deterioration of the situation of the communities in the Anglophone regions of the country.” Recommended “ending the practice of secret detentions and ensure that no one is detained in a secret site, including unregistered military detention sites.” Recommended Cameroon “engage in a dialogue at the policy level with representatives of the Anglophone communities so as to identify appropriate measures to adequately respond to the violence affecting the South-West and North-West regions.”
  • Belgium. Concerned about “repressive approach in the Anglophone regions of Cameroon that runs the risk of exacerbating violent tendencies when there is a need for dialogue.” Recommended that Cameroon “take appropriate measures to ensure that the security forces act in compliance with laws and international human rights standards, conduct “independent and transparent inquiries on allegations of excessive use of force and bring perpetrators to justice.”
  • Canada.. Expressed “condolences to families of victims of violence… especially … as a result of tensions linked to claims of Anglophone community in North-West and South-West. Recommended that Cameroon “engage in sustained dialogue with representatives of the Anglophone community in North-West and South-West so as to provide consensus-based solutions while upholding human rights.”
  • Chile. Concerned with “general crime environment that exists in the English-speaking areas of the country as well as the accepted use of force against protestors in these regions.”
  • Czech Republic. Recommended “investigation of alleged torture and other ill treatment of other detained persons and incommunicado detainees.” Recommended “recognition of the right of citizens to express their views in dealing with programs of the English-speaking provinces.”
  • Germany. Concerned about reports of “violations of freedom of press and assembly, especially in the English-speaking areas of the country.”
  • Haiti. Recommended “effective implementation of the official Bilingualism Policy in consultation with all stakeholders to ensure equal treatment of the English-speaking minority.”
  • Honduras. Recommended “effective implementation of the Bilingualism Policy so as to ensure the English-speaking population does not suffer discrimination in employment, education and access to legal services.”
  • Republic of Korea. Recommended that Cameroon “redouble its efforts for the full and effective implementation of the official bilingual policy and ensure that the Anglophone minority are not subject to inequality in access to public services, administration of justice and freedom of speech. “
  • Slovakia. Concerned by “reports of human rights violations and abuses such as arbitrary arrest and extrajudicial executions by government forces and armed forces against members of the country’s Anglophone minority.”
  • Switzerland. Concerned by “violations of fundamental freedoms in the framework of the Anglophone crisis and anti-terrorism efforts. Demonstrations have been violently repressed and arbitrary arrests and detentions in difficult conditions have been made. “ Recommended that Cameroon’s “anti-terrorism law be reviewed and amended to ensure it is not used to restrict freedom of expression, association and assembly. “Recommended that “any reported cases of violations or abuses by Cameroon’s security forces are subjected to independent inquiry and prosecution.”
  • United Kingdom. Noted that “the Anglophone crisis has led to violence and disruption to many people and urged the government and all parties to fully respect and guard human rights.” Recommended that the government “allow various international agencies to have access to Anglophone separatists leaders extradited by Nigeria and held incommunicado by Cameroon since January 2018.”
  • United States. U.S. expressed concern overcredible allegations of human rights violations and abuses by security forces.  We call on the government to credibly investigate these allegations and hold those responsible to account.  We are also concerned by reports of harassment and intimidation of youth, civil society, journalists, and opposition leaders, particularly in the Northwest and Southwest Regions, as well as restrictions on the rights of peaceful assembly and freedoms of association and expression.” (Emphases added.)

The U.S. also called on the Cameroon government “to respect the human rights of everyone, including the 47 [Anglophone] Cameroonians forcibly returned from Nigerian custody to Cameroonian authorities in January.  We expect the government of Cameroon to afford all individuals detained all of the rights and protections provided under domestic and international law.” (Emphasis added.)

 Finally the U.S. made these recommendations: “(1) Acknowledge and investigate credible allegations of human rights violations and abuses, and hold those responsible to account.(2) Respect the rights of peaceful assembly, and freedoms of association and expression, including when exercised online, and afford all of those detained all the rights enshrined in Cameroon’s constitution and under international law. (3) Decriminalize consensual same-sex sexual relations and immediately cease targeted discrimination and violence against LGBTI persons.”[2]

It also is noteworthy that France, which governed what is now the Francophone area of Cameroon after World War I until 1960, made comments without saying anything about the current Francophone-Anglophone conflict. Nor did two members of the troika for this UPR—Iraq and South Africa—while the third member of that group—United Kingdom—did as noted above.

Cameroon Government’s Response

At the end of the hearing, Cameroon’s Foreign Minister made a lengthy response to the many comments made by the other countries. He ended those remarks with the following extensive comments about the “Anglophone problem.”

“After World War II, under U.N. supervision, we obtained independence from France and the United Kingdom and created a single country by merging the two colonial states. There were not separate English-speaking and French-speaking countries, and now these linguistic groups have merged and are mixed and cannot be separated.”

“At the end of 2016 there was a corporate clamor by lawyers and teachers’ unions in the South-West and North-West. The government responded to these claims, and now no unions are making claims.”

“Some extremists used the unions claims to question the structure of the state by arguing for federalism. But the Constitution did not permit federalism. Instead the President asked for dialogue. Thus, the Prime Minister and Head of government intervened to conduct dialogue with the North-West and South-West. This resulted in a major decision to create the Commission for Bilingualism and Multiculturalism, which recognized the country was a multi-ethnic state with different linguistic communications.”

“Nevertheless, the extremists continued to commit acts of violence—burning houses, kidnapping, rape and destructive calls for hatred of communities.”

“But there is no Anglophone problem as such. Instead the government is working for some decentralization without giving in to the violence. There has been progress in these efforts. Not all are asking for a separate country.”

“The states in the North-West and South-West maintain law and order and seek to protect the people against abuses and to assure freedom of expression and movement without violence.”

“Some of the protesters have treated law enforcement officers like animals by cutting off their arms and feet. No one will tolerate this.”

“There are no extrajudicial executions.”

“Pursuant to Cameroon’s extradition treaty with Nigeria, Cameroon requested, and Nigeria granted, extradition of 47 Cameroonians who had committed acts of terrorism in Cameroon. They are not refugees. In Cameroon they are properly housed and will answer to the rule of law with assistance of counsel. They were not arbitrarily arrested. Instead they were arrested in Nigeria pursuant to international arrest warrants.”

“There is freedom of expression in Cameroon marked by openness in media. There are 1,200 publications, 25 private television channels, 25 private cable channels and 107 private radio stations. This freedom of expression has been enhanced by a 2015 law about electronic communications and the creation of a special fund for audio-visual communications.”

“In 2017 there was a temporary suspension of the internet in the North-West and South-West due to some messages promoting violence. On April 20, 2017 the Minister of Communications advised global operators to reset connections.”

Conclusion

The final stage of the Cameroon UPR will take place in September 2018, at which time the final report will be presented by the Troika.

The comments about the Francophone-Anglophone conflict by 14 countries and by the Foreign Minister’s concluding comments will be discussed in a future post. Another post will address this blogger’s general reactions to the UPR process that are raised by his review of the recent UPR process for Cameroon and for Cuba.

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[1] U.N. Human Rts. Council,  Cameroon Review—30th Session of Universal Periodic Review (May 16, 2018)  The following quotations and analysis of the comments by the Cameroon Foreign Minister and by U.N. members are based upon listening to their recorded comments in English or translated into English by U.N. interpreters when some of their voices were difficult to hear or understand. Thus, there may be errors in the following account of their comments. The exception is the U.S. which published its comments on the website for the U.S. Mission to the U.N., Geneva.

[2] U.S. Mission, Geneva Switzerland, U.S. Statement at the UPR of Cameroon (May 16, 2018).

 

Edward B. Burling’s Life-Long Friendship with Learned Hand

This series about the life of Edward B. (“Ned”) Burling commenced with a post about his connections with Katherine Graham, the owner and publisher of the Washington Post, and then retreated in time to a post about his birth and early years in Iowa, 1870-1890, followed by a post about his four years at Harvard University in Cambridge, Massachusetts, 1890-1894, another post about his 22 years as a Chicago attorney, 1895-1917, a post about his two years as a federal government attorney in Washington, D.C., 1917-1918 and another about his 48 years as a prominent private attorney in Washington D.C., 1919-1966.[1]

Friendship with Learned Hand

Learned Hand

Burling and Learned Hand met for the first time in their first year at Harvard Law School in 1891 and thereafter developed a life-long friendship while Hand was an eminent federal judge. [2] Burling once said, Hand was “much more intelligent [than other people and] appreciates me and understands me. [He is] … the only worthy recipient of my most intimate confessions.” These confessions included the following:

  • “One of my present theories is that it doesn’t pay to be good.”
  • “I know [in 1925] I do not want to practice law. I know I do not want to be a judge. I know I want to have pleasant, amiable, witty, gay people around me. I know I am tired of politics . . . . I want poetry, love, wine, interesting books, wide, comfortable bed with fresh bed clothing, looking out into gardens with bloomi ng trees . . . . I want to be moderately rich and have nice food and a smooth running automobile. . . . Somehow I feel I am going to get what I want.”
  • In 1959, Burling lamented that he was “afflicted with what you call  ‘frivolousness’ ” and that “this human pilgrimage seems to me really more awful, more terrifying and more pathetic than it does to most other people. I cannot bear to admit how terrible it really is. Therefore, I act in a rather silly fashion. I do the inappropriate thing. I offend the earnest, godfearing company. What I am apt to say sounds in bad taste.”

In 1925, Burling and Hand exchanged comments about the good life that were prompted by questions from a young man who was thinking about applying for a Rhodes Scholarship. Burling, advising the young man not to apply and instead to go into business, said that he believed four things were good: (1) “Freedom from compulsion by others, whether economic, social or political.” (2) “An active mind that keeps being interested in the changing panorama and its own operation.” (3) “Direct contact with nature.” (4) “The society of the few people of whom you are really fond.” This list, Burling added, did not include “success, power, achievement, position, least of all ‘service to humanity.'”  Hand disagreed, saying that the man should apply for the Scholarship and that “the life of the mind offers the most permanent and lasting satisfactions.”

Burling also shared with Hand observations about the political events of the day, including the following:

  • After the end of World War I Burling criticized the League of Nations as proposed by President Woodrow Wilson because it was not like the league Teddy Roosevelt had proposed, i.e., it was “not an association between nations freely entered into for the purpose of preserving boundaries established by tradition and usage”and instead was “an alliance for the purpose of perpetuating a military ascendancy over defeated nations.”
  • After the 1928 Republican Party convention, Burling said, “Never was a man of God [Herbert Hoover] more ably assisted by gentlemen who are not unknown in more worldly haunts.” Hoover “will smother Al. Smith–He is an extraordinary phenomenon. He will dominate American affairs for 8 years and after that will be the arbiter. . . . [You] will also see Hoover playing the game very successfully. . . . It will be the most powerful administration in the memory of man–and he will be a good party man. He will run the party. A man of God who is practical–you cant [sic] beat that combination.” (Emphasis added.) Apparently Burling had forgotten his inability to get along with Hoover at the U.S. food Administration in 1917. Ned also did not anticipate the Great Depression and FDR.
  • Soon after the start of what became World War II, Ned observed that “the thing for old men to do is to be as gay as we can be and just recognize that all things are subject to change. . . . There is something in us that craves permanence, finality; and yet we should be able to see that it is and always has been an idle dream. I am not in the least an optimist. . . . I think it is quite possible that for centuries the world will get worse, and that the world will be ruled by murder, treachery, brute force, but if that is the kind of animal man is, the thing to do is to recognize it and made such adjustments to it as are necessary. We always knew that in the past civilization had fallen before inroads of vigorous barbarians. What we did not foresee was that barbarians may organize in our very midst. But if that is what it is, we must deal with it as it is. . . .” Burling continued, “Although . . . society may proceed downward for centuries, I am rather inclined to think that will not be true. I rather think that this is like the eruption of a violent disease, and that the disease will subside. I think there must be many many people in the world who would like to surpress the armed murderer [Hitler?], and I believe that sometime they will be able to assert their power and that there will be an armed force controlled in the interest of a peaceful world that will keep the law breakers down.”
  • In the Spring of 1950 while touring Europe, Ned thought it not apparent “why the U.S.A. is first power in the world. Europe as a whole seems to me to have a sturdier population with more dependable qualities, the soil is fertile and it has all the natural resources. In the long run it may be that Europe will maintain its primacy.”
  • In the summer of 1952 Ned reacted to the presidential nominations of Adlai Stevenson and Dwight D. (“Ike”) Eisenhower. Stevenson, he believed, “will be hard to beat. His two speeches before the [Democratic] Convention were different from most political addresses. In the contest with Ike, he is going to be on his own ground. Ike is a novice. But in any case we are fortunate in having two such candidates.”
  • Ike and Nixon, of course, won the 1952 election, and four years later, Ned reflected on a re-run of the 1952 election.  He was most pleased by “the way Truman fell on his face [at the Democratic Convention]. He seemed to me like a bouncy monkey on a stick” or “a very cheap little ward politician.” Ned added, “The charm that Eisenhower’s personality exerts is an extraordinary phenomenon. But the Republican Party is relying too much on that. . . . After all, since 1952 the Democrats have been winning about every election–local and national. And [Adlai] Stevenson is a much abler campaigner that he was four years ago. And many, many people will not vote Republican because of Nixon.”
  • During the 1964 presidential campaign, Ned supported Lyndon Johnson, the Democrat, against Barry Goldwater, the Republican. At a White House dinner, Burling told Johnson that as the sole survivor of the Bull Moose Party, Burling could assure Johnson that he had the unanimous support of that Party.
  • Just after the inauguration of Lyndon Johnson as President in January 1965, one of Burling’s friends reported that at the annual dinner of one of their clubs, Richard Nixon had given a very witty “acceptance” speech for their satirical nomination of him for President. Nixon described himself as “the most over-nominated and under-elected man in history.” Nixon continued by saying that  he was opposed to the impeachment of Chief Justice Earl Warren because at 73 the justice was an old man and instead should be retired by setting age 72 as a mandatory retirement age for Supreme Court Justices and that “Bobby Kennedy was engaged in the process of becoming the father of his country.”

Conclusion

The above tidbits were discovered in my rummaging through Judge Learned Hand’s file of correspondence with Ned that was part of the Hand Papers at the Harvard Law School Library. When I finished reading the file, I was disappointed that most of the letters discussed what seemed like trivial matters and did not engage in intelligent discussions of the important issues of the day. I had forgotten that they were dear friends who enjoyed staying in touch and looking forward to  being together again.

The next and penultimate chapter in this account of the life of Burling will discuss the character of the man.

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[1] Citations to the sources for this post are found in this blogger’s Edward Burnham Burling, The College’s Quiet Benefactor (April 2008)(18-page essay and bibliography; on file in Grinnell College’s Special Collections and Archives).

[2] The definitive biography of the judge, Learned Hand: The Man and the Judge (2d ed., Oxford University Press, 2011), was written by Gerald Gunther (1927-2002), a prominent constitutional law scholar and professor at Stanford Law School.

 

 

 

 

An Impressionistic View of the Russian Federation

Jill Dougherty
Jill Dougherty

On October 17, Jill Doherty, a Russia expert and frequent traveler to that country, painted a verbal impressionistic portrait of today’s Russian Federation.

Russia today is weak militarily and economically, primarily due to low world prices for oil and gas and also to sanctions against Russia. This also makes Russia weak militarily with forced reductions in military budgets. Russia’s President, Vladimir Putin, who came to power in 1999, knows that, but is nonetheless determined to put Russia back on the world stage.

He has done so by injecting Russia into the Syrian conflict and Middle East affairs.[1] He has created conflicts on Russia’s perimeter with Georgia and Ukraine. He is pleased that Russia is at the center of the U.S. presidential campaign: “they may not love us, but they fear us.” He hates Hillary Clinton, whom he deems responsible for demonstrations against Russia’s parliamentary election in 2011. [The original version of this post erroneously said it was the 2012 Russian presidential election.] With respect to Trump, Putin flatters him and plays to his ego just as he did in Germany when he recruited people for the KGB.

Putin is galled by expressions of Western triumphalism over the USSR. He has a big sense of resentment against the West and quickly reacts to Western slights against Russia. Earlier this month Russia withdrew from a nuclear security agreement regarding plutonium with the U.S. Even more recently, U.S. Secretary of State John Kerry called for a war crimes investigation of Russia and Syria. Russia immediately responded by suspending talks with the U.S. over reducing violence in Syria, deploying sophisticated antiaircraft weapons in Syria and redeploying long-range ballistic missiles to Russia’s Baltic enclave of Kaliningrad.[2] Putin also talked about installing military bases in Cuba, but Doherty believes this is bluster to upset the U.S. in its pursuit of normalization with Cuba.

Russia now has an ability to criticize the West and its faith in liberal democracy. Russia sees Trump as saying just that while Europe is turning away migrants and falling apart. Robotics and artificial intelligence are increasing threats to jobs in the West. Putin believes that Russia provides a moral compass for the world with its socially conservative values.

Putin does not want to invade the Baltic states nor war with the U.S. Many Russians today, however, expect such a war in the near future. They talk about Russian military prowess, including nuclear weapons. They are buying emergency supplies of food and candles.

Russia’s relations with China are very important to Russia, which knows China could “eat its lunch.” China sees Russia as very weak, but an important source of energy for China. Russia also worries about China’s activities in central Asia.

When the Soviet Union collapsed in December 1991, Russia was very weak and chaotic with fears of a civil war with nuclear weapons. But the USSR did not dissolve in important ways. Thereafter Russia was challenged to create a new national identity. Yeltsin even had a commission to do just that, but it never completed the task. Putin, however, has done so. These are the main elements of that identity: Russian tsarism; Russian culture (the great composers, musicians, authors, playwrights and ballet dancers and choreographers); Russian bravery in the Great War for the Fatherland (World War II); the Russian Orthodox Church and its social conservatism; and modern technological accomplishments and talents.

Doherty’s mention of the contemporary importance of the Russian Orthodox Church reminded me of the 2014 Russian film, “The Leviathan,” which shows the Church’s complicity in a local government’s corruption and the absence of law; it won the Golden Globe Award for Best Foreign Language Film and was nominated for the Academy Award for Best Foreign Language Film.

Advice for next U.S. President? Do not expect to reset U.S.-Russia policies; Putin does not want that. Instead he looks for U.S. weaknesses and then reacts. He strives to be unpredictable. Do not insult or denigrate him or Russia. Try for disarmament and trade. Continue space cooperation and encourage scientific cooperation in the Arctic. Stop Russian aggression against former USSR countries. Help Ukraine economically. Putin’s presidential term ends in 2018, but it is very difficult to predict what will happen then.

Putin does not trust a lot of people and relies on a small circle of advisers. He is very popular with the people, especially the young people.

Putin had seen chaos before: he was from Leningrad, where during World War II his mother almost died of starvation, and his older brother died of dysentery at age three. After the war, Putin served the KGB in Germany and Russia and saw more chaos.

Doherty is a former thirty-year CNN Foreign Affairs Correspondent and former public policy scholar at the Kennan Institute. She holds a B.A. in Slavic languages from the University of Michigan and a M.A. from Georgetown University.

Her presentation at the University of Minnesota was sponsored by Global Minnesota, the University’s School of Journalism & Mass Communication and Minneapolis’ Museum of Russian Art.

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[1] E.g., Rosner, Israel Knows That Putin Is the Middle East’s New Sheriff, N.Y. Times (Oct. 17, 2016).

[2] E.g., Kramer, Vladimir Putin Exits Nuclear Security Pact, Citing ‘Hostile Acts’ by U.S., N.Y. Times (Oct. 3, 2016); Gordon & Sengupta, John Kerry Calls for War Crimes Investigation of Russia and Assad Government, N.Y. Times (Oct. 7, 2016); MacFarquhar, Behind Putin’s Combativeness, Some See Motives Other Than Syria,   N.Y. Times (Oct. 14, 2016); Sengupta, A Senior Russian Envoy’s Take on Relations with the United States: ‘Pretty Bad,’ N.Y. Times (Oct. 17, 2016).

 

Long History of Racism in U.S. Laws Regarding United States Citizenship

To my great amazement, I recently have discovered that the United States has had a long history of racism in its statutes regarding U.S. citizenship. In the words of Blum and Haney-Lopez, “From this country’s inception [in 1789-1790], the laws regulating who was or could become a citizen were tainted by racial prejudice. Birthright citizenship, the automatic acquisition of citizenship by virtue of birth, was tied to race [from 1790] until 1940. Naturalized citizenship, the acquisition of citizenship by any means other than through birth, was conditioned on race [from 1790] until 1952.”[1]

The following is a brief summary of these laws.

Birthright Citizenship

“The U.S. Constitution as ratified did not define the citizenry, probably because it was assumed that [U.S. law included] the English common law rule of jus soli,” i.e., “citizenship accrues to ‘all’ born within a nation’s jurisdiction.”

The Supreme Court, however, in its now infamous 1857 decision in the Dred Scott case held that Scott, an enslaved Negro of the African race whose ancestors were brought to the U.S. and sold as slaves, and all other Blacks, free and enslaved, were not and never could be citizens because they were a “subordinate and inferior class of beings.” Therefore, Scott did not have standing to sue in federal court to claim a right to his freedom. (Scott v. Sanford, 60 U.S. 393 (1857).)

This was changed after the Civil War in the Civil Rights Act of 1866, 14 Stat. 27 (1866), which stated that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” This was confirmed in Section 1 of the Fourteenth Amendment to the U.S. Constitution, adopted in 1868: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” https://www.law.cornell.edu/constitution/amendmentxiv

This statute and constitutional amendment, however, left two minorities in the cold on birthright citizenship.

The first group was children born in the U.S. to non-citizen parents. Their status was unclear until the U.S. Supreme Court in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), held that such children were birthright citizens of the U.S.

The second group was Native Americans who were born in the U.S. Here, the Supreme Court rendered a negative opinion in 1884 in Elk v. Wilkins, 112 U.S 94 (1884). It held that Native Americans owed allegiance to their tribes and thus did not acquire U.S. citizenship upon birth.

Thereafter Congress granted such citizenship in piecemeal fashion, tribe by tribe, until 1924, when it enacted the Indian Citizenship Act (Snyder Act), 43 Stat. 233 (1924), which stated “that all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.”

This statute, however, left unclear whether it covered individuals born after its effective date. That issue was finally resolved in section 201(b) of the Nationality Act of 1940, which stated, “The following shall be nationals and citizens of the United States at birth . . . A person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.”

Citizenship by Naturalization

Although the Constitution, as just noted, did not originally define the citizenry, it did make an explicit grant of authority to Congress to establish the criteria for granting citizenship after birth. That is found in Article I, Section 8 of the Constitution, which provides that Congress has the power “To establish an uniform Rule of Naturalization.” From the very start in 1789-1790 through 1952, Congress exercised this power in a manner that burdened naturalization laws with racial restrictions that tracked those in the law of birthright citizenship. This history can be seen in two periods: 1790-1870 and 1870-1952.

1790-1870

In 1790, only a few months after ratification of the Constitution, the very First Congress of the U.S. adopted the “Act to establish an uniform Rule of Naturalization,” 1 Stat. 103 (1790). It provided that naturalization was limited to immigrants who were “free white persons of good character.” (Emphasis added.) Although the statute did not define that term, it clearly excluded Native Americans, indentured servants, slaves, free blacks and Asians from this method of obtaining U.S. citizenship.

This sole requirement of being a “white person” for naturalization remained in the U.S. statutes until after the Civil War in 1870 when Congress adopted a statute that made it possible for naturalization for “aliens of African nativity and to persons of African descent.” This was contained in section 7 of An Act to amend the Naturalization Laws and to punish Crimes against the same, and for other purposes,” 16 Stat. 254 (1870).

In the 1870 congressional debate over this change, Senator Charles Sumner argued that racial barriers to naturalization should be struck altogether. However, racial prejudice against Native Americans and Asians forestalled the complete elimination of the racial prerequisites. For example, one senator argued against conferring “the rank, privileges, and immunities of citizenship upon the cruel savages [Native Americans] who destroyed [Minnesota’s] peaceful settlements and massacred the people with circumstances of atrocity too horrible to relate” in the U.S.-Dakota War of 1862.[2] Another senator wondered “’whether this door’ [of citizenship] shall now be thrown open to the Asiatic population,’ warning that to do so would spell for the Pacific coast ‘an end to republican government there, because it is very well ascertained that those people have no appreciation of that form of government; it seems to be obnoxious to their very nature; they seem to be incapable either of understanding or carrying it out.’”

1870-1952

Thus, as of 1870, being either “white” or “African nativity or descent” was a requirement for naturalization, and these options remained in U.S. law until 1952.

Other individuals, particularly those from Asia, were not eligible with this 1870 change in the law. Moreover, starting in 1882, Congress passed a series of laws that specifically excluded from naturalization individuals from China, Japan, India and the Philippines although the laws never specifically labeled them as “Asians” or “Orientals” or another supposed racial category. Thus, in 1922, the U.S. Supreme Court in Ozawa v. United States, 260 U.S. 178 (1922), held that a Japanese man was not “white” or Caucasian and thus ineligible for naturalization.

The next year in Thind v. United States, 261U.S. 204 (1923), the Court decided that an immigrant from India was not “Caucasian” and thus not eligible for naturalization. Important for the Court was the criterion of assimilability to separate the desirable immigrants from the undesirable ones: Asian Indians were distinguished from the swarthy European immigrants, who were deemed ‘readily amalgamated’ with the immigrants ‘already here.’

This limitation of naturalization to persons who were “white” or “African nativity or descent” eroded during World War II as a result of political pressures on the U.S. associated with its well-founded opposition to the horrendous racism of Nazism. In 1940 eligibility was extended to “descendants of races indigenous to the Western Hemisphere;” in 1943, to Chinese persons; and in 1946, to persons from the Philippines and India.

Thus, at the end of World War II, U.S. laws permitted naturalization for:

  • (1) white persons. persons of African nativity or descent, and persons of races indigenous to the continents of North or South America or adjacent islands and Filipino persons or persons of Filipino descent;
  • (2) persons who possess. either singly or in combination, a preponderance of blood of one or more of the classes specified in clause (1);
  • (3) Chinese persons or persons of Chinese descent; and persons of races indigenous to India; and
  • (4) persons who possess. either singly or in combination, a preponderance of blood of one or more of the classes specified in clause (3) or, either singly or in combination, as much as one-half blood of those classes and some additional blood of one of the classes specified in clause (1).

All of this complexity was eliminated in 1952 when Congress enacted the McCarran-Walter Act, 60 Stat. 163, 239 (1952), which states in section 311, “The right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex or because such person is married.”

Conclusion

 Although I was a history major at an excellent U.S. college, studied law for three years at a prominent U.S. law school, practiced law for 35 years, including some exposure to U.S. immigration law, and taught in another prominent law school for nine years, I am embarrassed to admit that until recently I was unaware of this history of racism in U.S. laws regarding U.S. citizenship beyond the post-Civil War changes regarding African-Americans.

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[1] Except for specific statutes cited and discussed, this account is primarily based upon Blum & Haney-Lopez, Racial Restrictions in the Law of Citizenship, Ch. 2. See also Braziel, History of Migration and Immigration Laws in the United States (Spring 2000).

[2] Prior posts to dwkcommentaries.com have discussed the U.S.-Dakota War of 1862: (1) The U.S.-Dakota War of 1862 (Nov. 3, 2012); (2) Abraham Lincoln’s Involvement in the U.S.-Dakota War of 1862 (May 21, 2013); ; (3) White Settler’s Contemporaneous Reaction to the U.S.-Dakota War of 1862 (Nov. 6, 2012); (4) U.S. Military Commission Trials of Dakota Indians After the U.S.-Dakota War of 1862 (June 11, 2013); (5) President Abraham Lincoln’s Involvement in the Military Commission’s Convictions and Sentences of the Dakota Indians (June 24, 2013); (6) Commemoration of the 150th Anniversary of the U.S.-Dakota War of 1862 (Nov. 9. 2012); (7) Commemoration of the 150th Anniversary of the Hanging of the “Dakota 38” (Dec. 26, 2012); (8) Minneapolis and St. Paul Declare U.S.-Dakota War of 1862 “Genocide” (Jan 12, 2013); (9) Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part I) (Nov. 18, 2012); (10) Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part II) (Nov. 25, 2012); (11) Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part III) (Nov. 29, 2012); (12) Personal Reflections on the U.S.-Dakota War of 1862 (Dec. 10, 2012).

 

 

 

 

 

 

President Obama’s Civics Lesson at Town Hall Meeting in London

On April 23, 2016, President Barack Obama addressed a town-hall meeting of 500 young Leaders of the United Kingdom at London’s Lindley Hall. [1] Below are photographs of Obama and of some of the young leaders at the meeting.

Obana UK more

London crowd

 

 

 

 

Here is Obama’s civics lesson that is directly relevant to U.S. citizens

Post-World War II World

The U.S. and Great Britain “ultimately made up [over the American Revolutionary War] and ended up spilling blood on the battlefield together [in World War II], side-by-side, against fascism and against tyranny, for freedom and for democracy.  And from the ashes of war, we led the charge to create the institutions and initiatives that sustain a prosperous peace — NATO; Bretton Woods, the Marshall Plan, the EU.  The joint efforts and sacrifices of previous generations of Americans and Brits are a big part of why we’ve known decades of relative peace and prosperity in Europe, and that, in turn, has helped to spread peace and prosperity around the world.“

“And think about how extraordinary that is.  For more than 1,000 years, this continent was darkened by war and violence.  It was taken for granted.  It was assumed that that was the fate of man.  Now, that’s not to say that your generation has had it easy.  Both here and in the United States, your generation has grown up at a time of breathtaking change.”

“You’ve come of age through 9/11 and 7/7 [the date of the 2005 terror attacks on a London bus and Underground trains].  You’ve had friends go off to war.  You’ve seen families endure recession.  The challenges of our time — economic inequality and climate change, terrorism and migration all these things are real.  And in an age of instant information, where TV and Twitter can feed us a steady stream of bad news, I know that it can sometimes seem like the order that we’ve created is fragile, maybe even crumbling, maybe the center cannot hold. And we see new calls for isolationism or xenophobia.  We see those who would call for rolling back the rights of people; people hunkering down in their own point of view and unwilling to engage in a democratic debate.  And those impulses I think we can understand.  They are reactions to changing times and uncertainty. “

“I implore you to reject those calls to pull back.  I’m here to ask you to reject the notion that we’re gripped by forces that we can’t control.  And I want you to take a longer and more optimistic view of history and the part that you can play in it. I ask you to embrace the view of one of my predecessors, President John F. Kennedy, who once said:  “Our problems are man-made.  Therefore, they can be solved by man.  And man can be as big as he wants.”

The “world, for all of its travails, for all of its challenges, has never been healthier, better educated, wealthier, more tolerant, less violent, more attentive to the rights of all people than it is today. “

“That doesn’t mean we don’t have big problems.  That’s not a cause for complacency, but it is a cause for optimism.  You are standing in a moment where your capacity to shape this world is unmatched.  What an incredible privilege that is.”

Reject “pessimism and cynicism; know that progress is possible, that our problems can be solved.  Progress requires the harder path of breaking down barriers, and building bridges, and standing up for the values of tolerance and diversity that our nations have worked and sacrificed to secure and defend.  Progress is not inevitable, and it requires struggle and perseverance and discipline and faith.”

“Fighting for change that you may not live to see, but that your children will live to see.  That’s what this is all about. . . . Whether in the Cold War or world war, movements for economic or social justice, efforts to combat climate change — our best impulses have always been to leave a better world for the next generation.”

Historical Perspective

Abolitionists “in the 1700s . . . were fighting against slavery, and for a hundred years built a movement that eventually led to a civil war, and the amendments to our Constitution that ended slavery and called for equal protection under the law.  It then took another hundred years for those rights that had been enshrined in the Constitution to actually be affirmed through the Civil Rights Act of 1964 and the Voting Rights Act of 1965.  And then it’s taken another 50 years to try to make sure that those rights are realized.  And they’re still not fully realized. There’s still discrimination in aspects of American life, even with a black President.”

This history means “that if any of you begin to work on an issue that you care deeply about, don’t be disappointed if a year out, things haven’t been completely solved.  Don’t give up and succumb to cynicism if, after five years, poverty has not been eradicated, and prejudice is still out there somewhere, and we haven’t resolved all of the steps we need to take to reverse climate change. “

“Dr. [Martin Luther] King [,Jr.] said, ‘The arc of the moral universe is long, but it bends towards justice.’  And it doesn’t bend on its own.  It bends because we pull it in that direction.  But it requires a series of generations working and building off of what the previous one has done. “  (Emphasis added.)

Passion To Highlight Societal Problems

“As a general rule, I think that what, for example, Black Lives Matter is doing now to bring attention to the problem of a criminal justice system that sometimes is not treating people fairly based on race, or reacting to shootings of individuals by police officers, has been really effective in bringing attention to problems.”

 Need To Have a Strategy for Change and Compromise

But “once you’ve highlighted an issue and brought it to people’s attention and shined a spotlight, and elected officials or people who are in a position to start bringing about change are ready to sit down with you, then you can’t just keep on yelling at them.  And you can’t refuse to meet because that might compromise the purity of your position.”

“The value of social movements and activism is to get you at the table, get you in the room, and then to start trying to figure out how is this problem going to be solved.  You, then, have a responsibility to prepare an agenda that is achievable, that can institutionalize the changes you seek, and to engage the other side, and occasionally to take half a loaf that will advance the gains that you seek, understanding that there’s going to be more work to do, but this is what is achievable at this moment.

And too often what I see is wonderful activism that highlights a problem, but then people feel so passionately and are so invested in the purity of their position that they never take that next step and say, okay, well, now I got to sit down and try to actually get something done..”

Everyone has “to be principled, you have to have a North Star, a moral compass. There should be a [good] reason for you getting involved in social issues. . . . But you have to recognize that, particularly in pluralistic societies and democratic governments like we have in the United States and the UK, there are people who disagree with us.  They have different perspectives.  They come from different points of view.  And they’re not bad people just because they disagree with us.  They may, in fact, assert that they’ve got similar principles to ours, but they just disagree with us on the means to vindicate those principles.”

Compromise “does not mean surrendering what you believe, it just means that you are recognizing the truth, the fact that these other people who disagree with you or this other political party, or this other nation — that they have dignity too, that they have worth as well, and you have to hear them and see them.”

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[1] White House, Remarks by President Obama in Town Hall with Young Leaders of the UK (April 23, 2016); Gani, Barack Obama tells young people that progress is possible, Guardian (April 23, 2016); Hayden, Obama’s ‘Town Hall’ Meeting with British Youth Covered Gender Rights, Islamophobia, and Leadership, Vice News (April 23, 2016).